By  on August 25, 2010

WASHINGTON — Wal-Mart Stores Inc. filed an appeal with the U.S. Supreme Court Wednesday, asking the high court to essentially overturn a lower court’s class-action certification in what could be the largest ever gender-discrimination lawsuit.

The nation’s largest employer argued in its petition for writ of certiorari that the class-action certification in the landmark lawsuit violated its rights and contradicts earlier decisions handed down by the high court and other appellate courts.

The Supreme Court must agree to hear the case before Wal-Mart’s appeal can move forward.

Wal-Mart is challenging a sharply divided decision handed down by the U.S. Ninth Circuit Court of Appeals in San Francisco in April, allowing a gender-discrimination complaint to go to trial as a class-action lawsuit. The federal appeals court’s 6-to-5 ruling affirmed a lower court’s class-action certification and also allowed members to seek back pay as well as injunctive and declaratory relief.

The legal question Wal-Mart is asking the high court to consider is whether the case should be certified a class action and cover monetary damages such as back pay for more than a million current and former employees. The company is seeking to have the lower courts’ certification overturned.

“It is important to remember that the Ninth Circuit’s opinion dealt only with class certification, not with the merits of the lawsuit,” the retailer said. “Wal-Mart is an excellent place for women to work and has been recognized as a leader in fostering the advancement and success of women in the workplace.”

If the Supreme Court accepts the case, the question of whether Wal-Mart discriminated against women — an allegation it denies — will not be addressed.

Wal-Mart said in its petition to the high court that the certified class was “estimated to cover over 1.5 million former and current female employees who held different jobs in different stores in different states under the supervision of different managers. The class is larger than the Army, Navy, Air Force, Marines and the Coast Guard combined, making it the largest employment class action in history by several orders of magnitude.”

The retailer also argued that class certification “swept aside the need to determine millions of individual issues by relieving plaintiffs of their burden of proving intent and injury and stripping Wal-Mart of its right to assert crucial defenses explicitly established by Title VII.”

“If the Ninth Circuit decision in this case stands, virtually every employer in the land could be subject to a similar suit,” Wal-Mart said in the petition.

Jocelyn Larkin, an attorney with the nonprofit Impact Fund representing the female employees, said, “These are the same arguments they [Wal-Mart] have been making for six years in trying to keep the women from getting their claims to court.

“We think the decision [by the lower courts] is based on well-established precedents and that there is nothing here for the Supreme Court to take,” she said. “The thing that is unique about our case is it is large and the reason it is large is that Wal-Mart is the largest employer in the U.S. and there is no exception in the law for big companies.

“They don’t want this case to go forward. They would rather force these women to file cases one by one,” Larkin said, adding that most of the women couldn’t afford to bring such cases individually.

Wal-Mart’s appeal before the Supreme Court stems from a labor suit originally brought by employee Betty Dukes and five other plaintiffs in 2001, alleging the company’s corporate structure discriminated against women on a pay and promotion basis, among other accusations.

In 2004, the U.S. District Court for Northern California conferred class-action status in the case to female employees who had worked at Wal-Mart stores in the U.S. since 1998. Wal-Mart appealed to the federal appeals court in San Francisco, which affirmed the class-action status of the case, but effectively reduced the size of the class.

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